Landlord and tenant – Assured shorthold tenancy – Possession – Respondent landlord serving notice under section 8 of Housing Act 1988 of intention to apply for possession – Notice containing name and address of agent but not respondent – Appellant tenant appealing against decision of county court that notice valid – Whether notice being demand for rent – Whether notice to include name and address of landlord – Appeal dismissed
The respondent let flat 16, Amelia House in London NW9 to the appellant on an assured shorthold tenancy. The agreement gave the name of the landlord as the respondent with her contact address as “c/o O’Sullivan Property Consultants Ltd”.
When the appellant fell into arrears with the rent, the respondent’s solicitors served a notice under section 8(1) of the Housing Act 1988 of her intention to seek possession of the property on grounds 8, 10 and 11 in schedule 2 to the 1988 Act. It was signed by the solicitors as the landlord’s agent using form 3, the prescribed form applicable to possession of a dwelling house let on an assured tenancy pursuant to section 8(3) and 45(1) of the 1988 Act and regulation 3(c) of the Assured Tenancies and Agricultural Occupancies (Forms) (England) Regulations 2015. It gave their name, address and telephone number but did not refer to the respondent by name or give her address.
The deputy district judge subsequently gave judgment in favour of the respondent and ordered that possession of the flat be given and judgment entered for rent arrears.
The county court allowed the appellant’s appeal and remitted the matter for a new trial. However, it did not accept the appellant’s argument that the section 8 notice was a demand for rent and was invalid and of no effect because it failed to give the respondent’s name and address as required by section 47 of the Landlord and Tenant Act 1987.
The appellant appealed contending that the judge should have accepted that argument. Further, the failure to include the respondent’s own name and address in the section 8 notice meant that the notice was not in the prescribed form required by section 8 and regulations made under it, and hence again was invalid.
Held: The appeal was dismissed.
(1) The word “demand” was an ordinary English word, easier to recognise than define, and whatever its precise scope there had to be some communication from the landlord to the tenant requiring payment before it could be said that the landlord had made a demand for rent. On its face, the section 8 notice did not say anything about requiring payment. It was clear from the terms of section 8 and the notice itself that it gave information to the tenant. That was how it was described in section 8(3) where it was referred to as a notice in the prescribed form informing the tenant of four matters: (i) that the landlord intended to take proceedings for possession; (ii) the ground or grounds on which the landlord would rely; (iii) the earliest date on which proceedings might be brought; and (iv) the date when the notice would lapse if no proceedings were brought.
The notice itself followed the statutory scheme. Paragraph 2 informed the tenant that the landlord was intending to apply to court for possession. Paragraphs 3 and 4 specified the grounds on which the landlord intended to rely, and details of why each ground was relied on. Paragraph 5 gave the earliest date when the proceedings could be brought, and the final bullet point under paragraph 5 explained that the notice would lapse, and a new notice would be required, if proceedings were not brought within 12 months from the date of service of the notice. Nothing in the prescribed form demanded or requested, or even invited, the tenant to do anything, save that the notes at the end advised the tenant to contact the person signing the form if they were willing to give up possession, and to take the notice to a solicitor or other source of advice if they needed advice about it and what to do about it.
A section 8 notice did not require payment and it was not a “demand for rent” within the meaning of section 47 of the 1987 Act. The purpose of the notice was to give the tenant information so that they could deal with the situation as best they could and address the particular matters complained of in the section 8 notice. In a rent case that included doing what the tenant could to pay off the arrears and get the rent account up to date. But that did not mean that the notice required or demanded that the tenant do anything. Therefore, the judge was right to conclude that a section 8 notice based on arrears of rent was not a demand for rent within section 47.
(2) Form 3 did not require the landlord’s own name and address to be included. It was sufficient for the name and address of the person signing on their behalf to be provided. It was important for a tenant receiving a section 8 notice not only to know that proceedings were being threatened but also who was threatening them. But in the vast majority of cases there would be no real problem. If the tenant was unclear who was giving the notice, they would no doubt contact the agent who signed and ask. It was unlikely that the agent would have any reason not to tell them. The position would become clear once the claim form was issued and served in any event; and even more so if the tenant wanted to discuss payment of the arrears.
The forms were evidently designed to be capable of being used by ordinary citizens without the benefit of professional advice. If the form required the landlord’s own name and address to be given, even where an agent had signed for the landlord, the form would be a trap for the unwary: those who were professionally advised would usually get it right, but those who were not might easily make the mistake of thinking that they needed only give their agent’s name and address and then find that they lost perfectly sound claims for possession against defaulting tenants for want of a purely formal defect that had not in fact caused the tenant any prejudice.
Toby Vanhegan and Robert Brown (instructed by Duncan Lewis Solicitors) appeared for the appellant; Simon Jones (instructed by Philip Ross Solicitors) appeared for the respondent.
Eileen O’Grady, barrister
